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Justice Kennedy And The First Amendment, David L. Hudson Jr. Jan 2019

Justice Kennedy And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

This essay reviews some of Justice Anthony Kennedy’s most significant contributions to First Amendment jurisprudence. These include his calls for absolute protection for pure political speech, his strong protection for commercial speech, his distaste for campaign finance reform laws that censored speech, his general concern for the silencing of sexual expression, his coercion test in Establishment Clause cases, and his significant failure in the public-employee free-speech decision Garcetti v. Ceballos.


Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr. Jan 2018

Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.

Law Faculty Scholarship

This essay explains that Justice Thurgood Marshall’s passionate defense of freedom of expression can be seen most clearly in his defense of free-speech rights even when the government acts not as sovereign, but as warden, employer, or educator. In other words, Marshall’s commitment to free-speech is shown most forcefully by how he consistently protected the free-expression rights of inmates, public employees, and public school students.


Presidential Powers, Immunities, And Pardons, Alberto R. Gonzales Jan 2018

Presidential Powers, Immunities, And Pardons, Alberto R. Gonzales

Law Faculty Scholarship

This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity ...


The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer Jan 2018

The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer

Law Faculty Scholarship

Since the advent of the movement toward the use of electronic medical records, an axiom in the promotion of electronic health records (EHRs) has been the idea that the use of EHRs will reduce medical errors. Certainly, there are countless examples of how technology can improve the health care experience and aid providers in reducing medical errors, including errors of medication administration, medication management, access to decision support tools, telemedicine, immediate access to diagnostic tests and other clinical information and treatment results—just to name a few. Even with such improvements, however, EHRs have not entirely eliminated medical errors and ...


Law Schools, Bar Passage, And Under And Over-Performing Expectations, Jeffrey S. Kinsler, Jeffrey Omar Usman Jan 2018

Law Schools, Bar Passage, And Under And Over-Performing Expectations, Jeffrey S. Kinsler, Jeffrey Omar Usman

Law Faculty Scholarship

The focus of this article is to build a foundation for exploring whether there is a meaningful solution to help address the bar passage problem that can be found looking to the legal education programs of law schools that are particularly successful in preparing students to pass the bar exam. To accomplish this aim, a critical and essential step is to begin to identify the law schools that are adding the most in terms of assisting their students to pass the bar exam. That first critical step is the step taken by this article. A common-sense assumption, which finds support ...


It Is A Mindboggling Dilemma: To Play Or Not To Play Youth Sports Due To Concussion Risks?, Tracey Carter Jan 2018

It Is A Mindboggling Dilemma: To Play Or Not To Play Youth Sports Due To Concussion Risks?, Tracey Carter

Law Faculty Scholarship

Concussions and their long term effects resulting from football collisions have recently entered the forefront of social debate. Movies like Concussion as well as high-profile lawsuits due to post-concussion health effects have casted a spotlight on brain injuries at the collegiate and professional level. However, this debate has equal application in youth sports—recent studies show that sports-related concussions at the elementary, middle, and high school levels are equally concerning. Youth sports are safer when fewer athletes suffer from sports-related concussions. But litigation is not the best avenue to make youth sports safer. Youth sports can be improved by: 1 ...


Attorney Advertising In 'The Litigators' And Modern-Day America: The Continued Importance Of The Public's Need For Legal Information, David L. Hudson Jr. Jan 2018

Attorney Advertising In 'The Litigators' And Modern-Day America: The Continued Importance Of The Public's Need For Legal Information, David L. Hudson Jr.

Law Faculty Scholarship

This Essay addresses the phenomenon of attorney advertising from several vantage points. Part II of the Essay addresses how best-selling author John Grisham depicts attorney advertising in his great book The Litigators. Part III discusses the legal framework of how the U.S. Supreme Court protected attorney advertising as a form of protected commercial speech. Part IV addresses how the states and bar regulators have treated attorney advertising. Finally, Part V addresses the recent Association of Professional Responsibility Lawyers Report and the American Bar Association’s proposed changes to the ABA Model Rules of Professional Conduct regarding attorney advertising. Part ...


First Amendment Tests From The Burger Court: Will They Be Flipped?, David L. Hudson Jr. Jan 2018

First Amendment Tests From The Burger Court: Will They Be Flipped?, David L. Hudson Jr.

Law Faculty Scholarship

This article provides an overview of the Lemon test, Miller test, and the Central Hudson test, assessing how they fared in subsequent years, and offers thoughts on their continuing vitality.


Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson Jr. Jan 2018

Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson Jr.

Law Faculty Scholarship

This essay first examines the Tinker case and reminds readers of the powerful language Justice Fortas used in his majority opinion. It explains that the test from Tinker was designed to be a speech-protective standard for student litigants. The second part of the essay evaluates several recent cases, which demonstrate that the once speech-protective standard in Tinker has become a test that is often favorable and deferential to school officials embroiled in student, free-speech controversies.


Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr. Jan 2018

Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.

Law Faculty Scholarship

This Article first examines K-12 student speech law before Hazelwood School District v. Kuhlmeier and then discusses the Hazelwood decision. Next, the article focuses on the spread of Hazelwood and its deferential standard to the college and university level. This section examines cases from five different areas where the standard has been utilized with increasing frequency. Finally, the Article offers a few concluding thoughts on the Hazelwood standard and why it should be limited, if not interred.


From Guns That Do Not Shoot To Foreign Staplers: Has The Supreme Court's Materiality Standard Under Escobar Provided Clarity For The Health Care Industry About Fraud Under The False Claims Act?, Deborah R. Farringer Jan 2018

From Guns That Do Not Shoot To Foreign Staplers: Has The Supreme Court's Materiality Standard Under Escobar Provided Clarity For The Health Care Industry About Fraud Under The False Claims Act?, Deborah R. Farringer

Law Faculty Scholarship

As federal district courts and courts of appeals attempt to apply the Supreme Court’s dictates in Universal Health Services, Inc. v. U.S. ex rel. Escobar, it is necessary to ask whether the Court succeeded in easing the complexity of this aspect of the Federal Claims Act (FCA). Have lower courts been able to consistently apply the new standards to assess materiality? Or, has the opinion, which arguably both broadened and narrowed application of the implied false certificate theory and when liability might attach, further muddied the waters for courts and parties attempting to determine whether behavior is of ...


Challenges Of Multi-State Series And Framework For Judicial Analysis, Alberto R. Gonzales, J. Leigh Griffith Apr 2017

Challenges Of Multi-State Series And Framework For Judicial Analysis, Alberto R. Gonzales, J. Leigh Griffith

Law Faculty Scholarship

A variation of the common limited liability company (LLC) represents the newest form of entity enterprise on the business scene today. This is the Series Limited Liability Company (Series LLC). Under a Series LLC, the single LLC may establish and contain within itself separate series or cells. These cells or series are referred to by the Drafting Committee for the Limited Liability Company Protected Series Act of the National Conference of Commissioners on Uniform State Laws (NCCUSL) as “Protected Series.” Each such separate Protected Series is treated as an enterprise separate from each other and from the Series LLC itself ...


Police-Worn Body Cameras: An Antidote To The 'Ferguson Effect'?, Alberto R. Gonzales, Donald Q. Cochran Apr 2017

Police-Worn Body Cameras: An Antidote To The 'Ferguson Effect'?, Alberto R. Gonzales, Donald Q. Cochran

Law Faculty Scholarship

You are a police officer working the night shift in a major U.S. city. In the dark hours of the early morning, you come across a group of young males in a part of the city known for criminal activity. When they see your patrol car, the young men stop what they are doing and look away quickly. All of your training, as well as the instincts that you have developed over years patrolling these same streets, tells you to stop and at least attempt to start a conversation with the group to determine whether criminal activity is afoot ...


Series Llcs Part 2 - Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith Mar 2017

Series Llcs Part 2 - Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith

Law Faculty Scholarship

Part two of a two part article discussing the existing impediments to greater use of Series LLCs including taxation, bankruptcy, the Uniform Commercial Code and issues concerning multi-state activities and how these matters are being addressed by the National Conference of Commissioners on Uniform State Laws (NCCUSL).


Collision Course: State Community Property Laws And Termination Rights Under The Federal Copyright Act - Who Should Have The Right Of Way?, Loren E. Mulraine Jan 2017

Collision Course: State Community Property Laws And Termination Rights Under The Federal Copyright Act - Who Should Have The Right Of Way?, Loren E. Mulraine

Law Faculty Scholarship

The purpose of this paper is to provide an overview of recapture rights under copyright law, as well as a primer on the difference between common law and community property law as it relates to property rights in a divorce proceeding. The paper will utilize as a case study the dispute between William “Smokey” Robinson and his former spouse, Claudette Robinson, and provide a statutory solution for future disputes where federal copyright law and state community property laws collide at the intersection of copyright terminations. Specifically, should these newly recaptured rights be treated as a new estate and thus not ...


The Secret To 85% First-Time Bar Passage Rates, Jeffrey S. Kinsler, David L. Hudson Jr. Jan 2017

The Secret To 85% First-Time Bar Passage Rates, Jeffrey S. Kinsler, David L. Hudson Jr.

Law Faculty Scholarship

Many law schools have implemented bar preparation courses either as free-standing courses or as an integral part of their academic support program. On April 1, 2016, the ABA Journal published an article on the subject of law school bar preparation courses. Three law schools were featured in that article: Belmont University College of Law ("Belmont"), Florida International University College of Law ("FIU"), and the University of Missouri-Kansas City School of Law ("UMKC"). According to the ABA Journal, these law schools are out-performing their peers on bar exams due in part to in-house bar preparation courses. The story in the ABA ...


Send Us The Bitcoin Or Patients Will Die: Addressing The Risks Of Ransomware Attacks On Hospitals, Deborah R. Farringer Jan 2017

Send Us The Bitcoin Or Patients Will Die: Addressing The Risks Of Ransomware Attacks On Hospitals, Deborah R. Farringer

Law Faculty Scholarship

“You just have 10 days to send us the Bitcoin. After 10 days we will remove your private key and it's impossible to recover your files.” Message to Medstar employees. Within a span of just a few months in the spring of 2016, fourteen hospitals (four hospital systems) experienced ransomware attacks resulting in an inability for the hospitals to access any of their electronic medical records, including necessary patient data. Knowing that hospitals must have access to this data in order to appropriately treat and monitor patients, those responsible for the attacks requested a bitcoin payment as ransom for ...


Religious Freedom: The Original Civil Liberty, Loren E. Mulraine Jan 2017

Religious Freedom: The Original Civil Liberty, Loren E. Mulraine

Law Faculty Scholarship

What exactly is a “civil right?” What is a “civil liberty?” Are they synonymous? To the average American, the term “civil rights” conjures up images of the Jim Crow south, Rosa Parks, the Montgomery bus boycott, James Meredith’s integration of the University of Mississippi, Martin Luther King, Jr.’s March on Washington, the Edmund Pettus Bridge, and the Freedom Riders in Mississippi, among other historic events of the 1950’s and 60’s. Indeed, these are some of the most iconic events in modern U.S. history. They are also among the most important events in the modern civil ...


Cybersecurity Report Identifies Unique Challenges To Tackling Cybersecurity In Health Care, Deborah R. Farringer Jan 2017

Cybersecurity Report Identifies Unique Challenges To Tackling Cybersecurity In Health Care, Deborah R. Farringer

Law Faculty Scholarship

A discussion of the Health Care Industry Cybersecurity Task Force report regarding the preparedness of the health care industry to respond to ever increasing cybersecurity threats.


Anti-Profanity Laws And The First Amendment, David L. Hudson Jr. Jan 2017

Anti-Profanity Laws And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

The essay first examines several current state laws that prohibit profanity under certain circumstances. It then details a few recent cases in which individuals were convicted for uttering profanity. The next section explains how profanity can be a part of an unprotected category of speech, such as fighting words, true threats, or harassment. Finally, the essay examines whether such laws and cases comport with First Amendment principles.


Is Bar Exam Failure A Harbinger Of Professional Discipline?, Jeffrey S. Kinsler Jan 2017

Is Bar Exam Failure A Harbinger Of Professional Discipline?, Jeffrey S. Kinsler

Law Faculty Scholarship

Two of the reasons students fail the bar exam are lack of diligence and incompetence; these are also the primary reasons attorneys are disciplined. Using bar exam and disciplinary data from Tennessee, this Article substantiates the following theses: (1) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for ethical violations, particularly early in the lawyer’s career; and (2) The more times it takes a lawyer to pass the bar exam the more likely that lawyer will be disciplined for lack of diligence—including non-communication—and/or incompetence.


Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith Oct 2016

Series Llcs Part 1 — Current Status, Multi-State Issues And Potential Uniform Limited Liability Company Protected Series Act, Alberto R. Gonzales, J. Leigh Griffith

Law Faculty Scholarship

The Series Limited Liability Company (“Series LLC”), a variation of the traditional limited liability company (LLC), is the newest entity enterprise on the business scene today. Within this legal entity, separate “series” or “cells” can be created and established under the umbrella of a single LLC. Despite being under one “umbrella,” each of these cells has characteristics that make it both separate from one another as well as from the Series LLC itself. There is not yet a common term for these distinct units although the term series or cell is often used. The Drafting Committee for the Limited Liability ...


Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen Mar 2016

Advancing Executive Branch Immigration Policy Through The Attorney General's Review Authority, Alberto R. Gonzales, Patrick J. Glen

Law Faculty Scholarship

Prospects for comprehensive immigration reform look dim in light of past failures to enact legislation, such as the DREAM Act, and a continued period of divided government placing a skeptical Republican Congress in opposition to a sympathetic Democratic President. With legislative fixes for the United States’ immigration system unlikely in the near future, the Obama Administration will continue to press its immigration agenda via executive order and enforcement memorandum. Such initiatives do provide real short-term benefits, but they are by nature temporary and lack the ability to provide any permanent status to their beneficiaries. Importantly, however, they are not the ...


Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan Jan 2016

Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan

Law Faculty Scholarship

In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.


Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black Jan 2016

Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black

Law Faculty Scholarship

This article reviews the history of child safety restraints and analyzes the relevant health agency recommendations to consider their accretive value in determining whether stronger child safety restraint laws should be enacted. Next, the article reviews the current state of law in the area of child safety restraints and addresses arguments against strengthening the current laws. Lastly, the article concludes that states should enact the proposed model act to ensure that this nation's children ride safely restrained.


State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black Jan 2016

State 'Right To Try' Acts: A Good Start, But A Federal Act Is Necessary, Ellen A. Black

Law Faculty Scholarship

In an effort to help terminally ill patients bypass the FDA's arduous, time-consuming approval process and have quicker access to potentially life-saving drugs, states across the country have passed "right to try" acts. These state acts allow a terminally ill patient the right to access an investigational drug that has completed initial safety testing, known as Phase I, but that has not been approved by the FDA. The reasoning behind these acts is that terminally ill patients, with the guidance and counsel of their physicians, should have the choice whether to pursue an unapproved drug, rather than placing their ...


Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry Jan 2016

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Law Faculty Scholarship

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if so ...


The Meaning Of The Constitution And The Selection Of Judges, Harold See Jan 2016

The Meaning Of The Constitution And The Selection Of Judges, Harold See

Law Faculty Scholarship

In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system-usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.


First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr. Jan 2016

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know how ...


Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine Jan 2016

Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine

Law Faculty Scholarship

Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply ...